Thursday, May 26, 2005

I didn't think the filibuster deal would last, but...

. . . I honestly thought it might last at least two or three days.

Silly me. The Democrats have just voted to sustain a filibuster against the nomination of John Bolton to be UN Envoy.

To refresh your memory, the MOU reads, in relevant part, as follows:

A. Future Nominations. Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.
It is clear that the signatories to the above agreed to "exercise their responsibilities" under the Advice and Consent Clause in good faith. What are those senators' responsibilities under the Advice and Consent Clause? Article II, Section 2 clause 2 reads as follows:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The same Advice and Consent Clause applies both to the appointment of judges and to the appointment of ambassadors and other officers. Everyone signing the MOU was fully aware of this fact. If nothing else is clear, it is beyond question that the signatories of the MOU committed to exercise their responsibilities under this clause, and to do so in good faith. There is no limitation in the words of the MOU as to a good faith exercise of "some responsibilities" or of "certain responsibilities" under this clause, or of the exercise of "those responsibilities relating to judges." There was clearly no reservation of rights to act "in bad faith" with respect to certain responsibilities under the Constitution. (I would've loved to have seen that document.)

Similarly, the "extraordinary circumstances" exception is not in any respect limited to judicial nominees. Although the MOU uses the specific term "judicial nominees" elsewhere in its provisions, it uses the generic "nominees" in this clause. If the signatories of this document had intended to restrict their commitment in this manner, so that this commitment only applied to "judicial nominees," they were certainly capable of saying so. This document was drafted by a group of United States Senators, each with a team of lawyers at his disposal. This document was vigorously debated and negotiated. We may never know how many earlier drafts of this document were circulated or what those drafts may have provided. What we do know is what the signatories said in the document as signed, and those words are clear on their face. I suggest that we in the public should be entitled to take the signatories at the words which they themselves chose to use.

Bottom line: if they are filibustering Bolton without determining that "extraordinary circumstances" exist, they are violating the clear literal text of the MOU that they just signed.


Anonymous Anonymous said...

They're not preventing an up or down vote. They are merely asking for information they previously requested that they feel is necessary to make an informed decision.

7:26 AM  
Blogger Eman said...

That is, of course, the Democratic Party line. What information do you think they need and how would that information inform their decision on Bolton?

11:35 AM  
Anonymous Anonymous said...

He requested "unminimized identification" information from the NSA on American citizens. Democrats want to know why and what did he do with that information.

11:53 AM  

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